Caplen v. Drew

54 Tex. 493, 1881 Tex. LEXIS 53

Opinion

Watts, Commissioner.

The general rule is well established, that in trespass to try title the plaintiff must re cover, if at all, upon the strength of his own, and not upon any supposed defect of the defendant’s title. What constitutes a sufficient title to make a prima facie case against a defendant in possession, is discussed and clearly stated by the present chief justice in the case of Keys v. Mason, 44 Tex., 142, 143, wherein it in effect is said, that merely a prior possession to that under which the defendant claims, with a regular claim of title, connecting himself with such prior possession, would overcome the presumption of right arising from the defendant’s possession, and throw upon him the burthen of disproving the plaintiff’s case, or showing a superior title in himself.

The federal court judgment, under which appellant claims title to the lot in controversy, took hen upon the land of Hollis, the defendant therein, from the rendition thereof. If, as a matter of fact, Hollis was in possession of the lot at the rendition of that judgment, then the lien attached to that possession, and the rights attending the same and resulting therefrom, passed by the operation of the hen to, and vested in, the purchaser at the marshal’s sale. Such possession would be evidence of title in Hollis, and as the purchaser connects himself directly with that possession by showing a judgment against Hohis, an execution, return and marshal’s deed, this would constitute sufficient title in the purchaser, in the absence of other evidence, to entitle him to recover.

The appellant had shown a regular chain of title connecting himself with Holhs, but the court below refused to allow him to show the only other fact essential in making out his case; that is, the possession of Hollis at the rendition of the judgment. Tyler on Ejectment, pp. 177, 503; Abbott’s Trial Evidence, 702.

If, in addition to the evidence introduced by appellant, it had been shown that Hollis was in possession of the lot at the rendition of the judgment, then the burthen would have been thrown upon appellees to disprove the appellant’s case, or show a superior title in themselves.

We are of the opinion the court erred in refusing to admit the evidence offered by appellant, and for this the judgment ought to be reversed.

Reversed and remanded.

[Opinion delivered March 11, 1881.]